Vol. 12, No. 27	Covering Cases Published in the Advance Sheets through July 4, 2005

• On Oct. 30, 2004, president Bush signed into law the hastily enacted and little debated Crime Victims’ Rights Act, 18 U.S.C. § 3771 (CVRA); and we have begun to see the first of what we are sure will be a long-line of cases interpreting that contours of that far-ranging law that will undoubtedly pose a host of new procedural and tactical problems for defense counsel.

  In In Re: W.R. Huff Asset Management, the Second Circuit became the first appellate court to address the CVRA; and, while it denied the statutory relief requested by the victim petitioners in that case, the court’s decision left no doubt that the CVRA has significantly expanded the role of crime victims in Federal criminal proceedings. In Marcello, Judge Zagel of the N.D.Ill. also denied an alleged crime victim the right to give oral testimony at a bail detention hearing, principally because the Government refused to tell him how the victim’s testimony would be relevant or material; but he did conclude that victims’ statements “will almost always be relevant, material and spoken” at sentencing and in prison release cases.
  

Sentencing

• The Rooney case from the D.Me. is a pre-Booker (but just published) case that is noted for its extended discussion of the elusive “lesser harms” defense contained in U.S.S.G. § 5K2.11.
  
  
• In Fontes, the First Circuit briefly addressed the concept of “sentencing factor manipulation” (which is sometimes referred to as “sentencing entrapment”). Here, even though it acknowledged that the Government had acted improperly by directing an undercover informant to buy crack cocaine from the defendant, rather than powder cocaine, in order to get a higher sentence, the Court upheld the district court’s ruling that the defendant’s ultimate predisposition to sell the drugs prevented the government’s misconduct from being “extreme and outrageous” enough to warrant a downward departure.
  

The Fourth Amendment

• In Jackson, a divided panel from the D.C. Circuit reversed a gun conviction on the grounds that the police officers lacked probable cause to search the trunk of car that the defendant was driving. This decision, however, is particularly noted for Judge Robert’s dissent, which sheds some light on his views about the Fourth Amendment. While the majority concluded that the reasons given by the police for searching the trunk were “confused” and lacked any justification for the search, Judge Roberts disagreed, concluding that the appellate court had neither the authority nor the expertise to question the district court’s ruling which upheld the validity of the search.
  
  
• In Laughton, a divided panel from the Sixth Circuit held that where a search warrant is not supported by probable cause, the “good faith exception” to the exclusionary rule may not be relied upon to permit consideration of information known to a police officer but not included in the warrant application’s supporting affidavit.

U.S. v. Booker - Update

The lower courts continue to churn out an amazing number of new decisions based on U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005). As noted above, the number of new Booker decisions rose to 2625 cases since Jan.12, 2005. We continue to monitor and report the most significant new Booker-related developments on our special Booker Resource Center at www.ussguide.com/members/BulletinBoard/Booker/index.cfm/, where we post those developments on a Circuit-by-Circuit basis.

One of the more interesting Booker cases from the past week was the Eighth Circuit’s ruling in U.S. v. Coffey, No. 04-2176 (8th Cir. 07/25/05). In that decision, the Court held that, while there had been Booker error, the defendant was not entitled to any relief under the principles established in U.S. v. Pirani, 406 F.3d 543, 551 (8th Cir. 2005) (en banc), because he could not show a 'reasonable probability,' based on the appellate record as a whole, that but for the error he would have received a more favorable sentence. Bound by the Court’s precedent in Pirani, Judge Heaney concurred; but he also blasted the Eighth Circuit's stingy and sometimes absurd standard for granting relief based on Booker, stating in part:

"Coffey challenged his mandatory guidelines sentence in district court for essentially the same reason that the Booker court found the guidelines unconstitutional, yet that objection was not specific enough to preserve his Booker claim. Instead, the Pirani majority required Coffey to either cite a case - Blakely - that was not yet law, or rely on Apprendi or the Sixth Amendment, which had been held by our court en banc to have no application to the guidelines.  Where could such an absurd result stand?  Justice Scalia might reply, 'Only in Wonderland.' Booker , 125 S. Ct. at 793 (Scalia, J., dissenting)."

To put those comments in context, a number of other Circuits, including the First, Fifth, Seventh, and Eleventh Circuits, have also adopted the same "reasonable probability" standard for obtaining Booker relief. However, based on the increasingly short shrift given by the courts to any meaningful discussion of what constitutes a “reasonable probability” of a different outcome, it is becoming clear that the courts are intoning that phrase without giving much consideration to the real meaning of “reasonable probability.”

For that reason, we note Judge Weinstein’s detailed discussion of the reasonable probability standard in U.S. v. Copeland, 369 F.Supp.2d 275 (E.D.N.Y. 2005) (P&J, 06/27/05). Although that case addressed the meaning of “reasonable probability” in the context of a specific immigration statute, Judge Weinstein did conclude:

“While ‘reasonable probability’ . . . seems deliberately designed to be fuzzy in concept and articulation, it is suggested that a probability of 20% . . .represents a sensible and enforceable standard . . . “ and that “requiring a petitioner to meet a burden greater than 20% . . . would therefore seem unfair and unreasonable.” (Copeland, id., at 287 & 288).

In re W.R. Huff Asset Management Co., LLC, 409 F.3d 555 (2nd Cir. 2005) (Judge Hall)
U.S. v. Marcello, 370 F.Supp.2d 745 (N.D.Ill. 2005) (Judge Zagel)

Background

On October 30, 2004, President Bush signed into law the Crime Victims’ Rights Act (CVRA), which has become codified at 18 U.S.C. § 3771. Because we expect that CVRA to have a major impact on many Federal criminal proceedings, we thought it appropriate to expound a bit on its origins, its scope, and its ramifications on Federal criminal proceedings - particularly in the context of these two cases, which are among the first published decisions addressing the CVRA.

The CVRA is one of those jump-on-the-bandwagon, feel-good laws that was part of a larger and even more cockamamie bill that had the euphoric name of the “Justice for All Act of 2004." Three facts tell much about the CVRA: (1) the bill was sponsored by Rep. Sensenbrenner (R.Wisc); (2) no hearings were held in the Committee on the Judiciary on this legislation; and (3) the legislation was passed in the House by a vote of 393-14 and in the Senate by unanimous consent (even though, according to Judge Zagel, the bill “sailed through both the House of Representatives and Senate without serious committee review or floor debate.” (U.S. v. Marcello, 370 F.Supp.2d 745, 747 (N.D.Ill. 2005)).

The CVRA starts by codifying a Bill of Rights for crime victims, covering eight specific rights, including

• “The right to reasonable, accurate, and timely notice of any public court proceeding involving the crime or of any release or escape of the accused”;
  
• “The right not to be excluded from any such public court proceeding, unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at that proceeding”;
  
• “The right to be reasonably heard at any public proceeding involving release, plea, or sentencing”; and
  
• “The reasonable right to confer with the attorney for the Government in the case.”

The CVRA defines crime victims to mean any person “directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia”; and it then goes on to give those victims the right to file for relief in the district court and, if the district court denies the relief requested, to file a writ of mandamus in the Court of Appeals, which the appellate court must then “take up and decide” within 72 hours after the petition has been filed. (Congress appears to have made no accommodation for weekends and holidays - so it is unclear whether the appellate courts must convene on a Sunday if the writ of mandamus is filed on Thanksgiving eve!)

Against that background, we consider two of the very first cases that have explored some of the contours of the CVRA.

The Huff Asset Management Case

This case involved two petitions for writs of mandamus, based on the CVRA, which were brought by two companies that had purchased high-yield debt securities of Adelphia Communications Corporation, a publicly traded company founded and controlled by John Rigas and members of his family.

Alleging securities fraud and other crimes, the Government instituted a series criminal and civil proceedings against Adelphia and its controlling shareholders; and, in July, 2004, a jury found John Rigas and his son, Timothy Rigas, guilty of various crimes. The SEC also commenced civil proceedings against John and Timothy Rigas and other members of their families.

Then, in April, 2005, the Government entered into a sweeping Settlement Agreement with John and Timothy Rigas and other members of their families who had either not been named or were not convicted in the criminal action. Under the Settlement Agreement, the entire Rigas family consented to the forfeiture of various assets [into a Victim Fund with an estimated value of $715 million], in exchange for which the Government agreed not to request an order of restitution or a criminal fine against John or Timothy Rigas at their sentencing and not to seek "further forfeiture, restitution, fine or other economic sanction or recovery in relation to the ownership, control or management of Adelphia by the Rigas Family."

The Settlement Agreement also provided, in relevant part, that “as a condition to receiving a distribution from the forfeited assets or the Victim Fund, the Attorney General shall require any such victim recipient . . . to release and discharge the Rigas Family [except for John and Timothy Rigas] . . . from any and all actions, claims or liabilities of any nature in relation to the ownership, control or management of Adelphia by the Rigas Family, . . . and to dismiss any such claim or litigation commenced by such recipient against the Rigas Family [except for John and Timothy Rigas].”

After a hearing at which various objectors, including the petitioners in the instant case, appeared and were heard, the district court approved the terms of the Settlement Agreement. Utilizing the mandamus procedures authorized by the CVRA, the two corporate petitioners sought to vacate the Settlement Agreement, arguing that the district court had abused its discretion in approving that document

The petitioners that they had purchased high-yield debt securities issued by Adelphia; that they had suffered significant losses that would not be fully covered by the Victim Fund; and that their rights under the CVRA had been violated. The principal argument made by both sets of petitioners was that the Settlement Agreement, “by requiring releases of third parties, unfairly compromises the right of crime victims to receive full restitution.” They argued that the Settlement Agreement presented them with “a Hobson's choice of either foregoing compensation from the approximately $ 715 million in Victim Fund proceeds or accepting a distribution (under an as-yet unknown plan of allocation) under unreasonable constraints that unnecessarily jeopardize the viability of their civil claims against other participants in the Adelphia fraud.”

In a sweeping decision that is particularly significant because it represents the first appellate review of many of the provisions of the CVRA, the Second Circuit broadly upheld the district court’s approval of the Settlement Agreement and, in the process, put some crimps on an overly-expansive approach to the CVRA.

The Court grumbled, somewhat caustically, that Congress had changed the found rules for writs of mandamus - converting what had historically been an “extraordinary remedy” to one in which crime victims, seeking recourse under the CVRA, “need not overcome the hurdles typically faced by a petitioner seeking review of a district court determination through a writ of mandamus.” In response to that more liberal standard, the Court also made clear that the appropriate standard of review under the CVRA was for abuse of discretion - and not a de novo review or review for clear error.

In addressing the facts of this case, the Court emphasized that “neither the Government nor the sentencing court are restricted by the CVRA from effecting reasonable settlement or restitution measures against non-convicted defendants.” (Emphasis added.)

The Court also rejected the petitioners’ claim that the CVRA (specifically 18 U.S.C. § 3771(a)(6)) entitles them to “full and timely restitution.” The Court held that the CVRA was subject to at least two pre-existing modifiers contained in the Mandatory Victim Restitution Act, codified at 18 U.S.C. § 3663A (MVRA) - namely, that victims of crimes are not entitled to mandatory restitution if the district court determines that (a) “the number of identifiable victims is so large as to make restitution impracticable”; or that (b) “determining complex issues of fact related to the cause or amount of the victim’s losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process.”

Finally, the Court rejected a series of other arguments raised by the petitioners, stating that they were either without factual support or legal basis, or they were “implicitly considered in an appropriate fashion by the district court in its extensive successful efforts to provide notice of the proposed settlement and to solicit and hear objections to it.”

The Marcello Case

In this case, the Government petitioned for the pretrial detention of two defendants; and, as part of its case, it sought permission to have a victim of the defendants’ crimes - namely the son of a man allegedly murdered more than 20 years earlier as part of the conspiracy in which the defendants allegedly participated - offer an oral statement opposing the defendants’ release. In support of its motion, the Government cited the provisions of the CVRA (namely 18 U.S.C. § 3771(a)(4)), which states that crime victims have the right “to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing or any parole proceedings.”

Judge Zagel offered the victim the opportunity “to state in writing what he might say that would be relevant or material to the issue of Defendants’ detention” (id., at 747); but the Government refused to supply such a statement, arguing, instead, that the CVRA required the court to hear an oral account of the victim’s views. Judge Zagel commented: “The Government bases this extraordinary argument on language found in the statute’s rather limited legislative history.” (Id., at 748).

However, because he found the statutory language to be clear, he concluded that resort to the legislative history was unnecessary. He then stated:

“The statute clearly and unambiguously grants crime victims the right to be reasonably heard. The plain language of the statute does not mandate oral presentation of the victim's statement. While the word ‘heard’ does imply oral presentation in ordinary English, it does not have that meaning in courts where it is a term of art. Being ‘reasonably heard’ in the ordinary legal and statutory meaning typically includes consideration of the papers alone.” (Id.)

Based on that reasoning, Judge Zagel denied the Government’s motion, stating that the CVRA “does not require the admission of oral statements in every situation, particularly one in which the victim’s proposed statement was not material to the decision at hand.” (Id., at 746). He further concluded that:

“While it is true that a victim's statements will (at least at sentencing and prison release hearings) almost always be relevant, material and spoken from personal knowledge, this will not always be the case at hearings on bond for a defendant who is, as Congress has mandated, clothed with the presumption of innocence and against whom the victim can offer no material information.” (Id., at 750).

As a matter of interest, it should be noted that Judge Zagel expressed strong support for the CVRA’s policy of giving crime victims the right to participate in the criminal proceedings, stating that the victim was “in a moral sense, a party to the case.” (Id., at 746, n. 2).

The rulings in these two cases are of course limited to the particular facts before the courts; but both decisions make clear that defense counsel will have to pay attention to the expanded rights that have been given to crime victims in the CVRA. (See, e.g., “New Clout for Victims in Criminal Proceedings,” by Peter D. Morgenstern and Eric B. Fisher, New York Law Journal, July 20, 2005.)

Among the many unanswered questions about the CVRA that the court will be required to resolve are the following:

• Victims are defined a persons who are directly and “proximately” harmed as a result of the crime. How far does the concept of proximate harm go? For example, if a child is the victim of a crime, are his or her parents proximate victims of the crime? And what about brothers, sisters, grandparents, uncles, aunts, cousins, and significant others?
  
• Do crime victims have the right to see and comment on the contents of a defendant’s presentence report?
  
• Do crime victims have the right to participate in the plea bargaining process; for example, can they object to the dismissal of some of counts of an indictment, particularly where the actions of the prosecutor and defense counsel might disenfranchise a victim?
  
• Does defense counsel have to give accurate and timely notice of all proceedings to everyone who claims to be a victim?
  
• Are there any “victims” in drug cases? in firearm possession cases? in immigration cases?
  
• Are there any limits to the numbers of victims in large white collar crime cases that impact the financial markets - or do all the victims have the right to attend the proceedings in special Madison Square Garden-type setting, where they can all fit and be “reasonably heard”?

Some of these questions may be answered when the Attorney General promulgates regulations under the CVRA, as he is required to do before Oct. 30, 2005; but the CVRA has the potential of becoming a cumbersome, costly and intrusive interference in criminal proceedings because no one ever considered a lot of these questions before rushing to pass the politically-popular CVRA.

U.S. v. Jackson, No. 04-3021 (D.C.Cir. July 22, 2005) (Judge Rogers)

Tarry Jackson was stopped by two United States Park Police officers for driving a car at night without a functioning light on the license plate. Jackson could produce neither a driver’s license nor the car’s registration; and the police officers determined that the license plates had been stolen, although there was no evidence that the car itself had been stolen.

After handcuffing Jackson, the officers searched the passenger compartment of the car, including the glove compartment, for documentation of ownership. They did not find any documentation, contraband, or evidence of criminal activity. Nevertheless, the officers then searched the trunk of the car, stating later that they did so in the hope of finding "real tags" and "other identifying information about the vehicle" in the trunk. Although the officers did not find the real tags or any identifying information, they did find a loaded .25 caliber pistol and ammunition inside a child-sized backpack within the trunk.

Jackson, who had a criminal record, was indicted for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). He moved to suppress the evidence of the gun found in the trunk on the grounds that the police lacked probable cause to search the trunk of a car stopped for a traffic violation. When the district court denied that motion, Jackson conditionally pled guilty to the unlawful possession charge, preserving his right to appeal the denial of the suppression motion. After he was sentenced to 21 months in prison, he appealed his conviction.

The issue before the Court was “whether the evidence would have led a ‘prudent, reasonable, cautious police officer’ to believe that there was a reasonable likelihood the trunk contained contraband or evidence of a crime.”

The two judges on the majority (Judges Rogers and Edwards) noted that the district court had concluded that the police officers’ testimony about why they had searched the trunk was “confused,” determined that the reasons given for the search were unconvincing, and it faulted the officers for not questioning Jackson more closely before searching the trunk. In the end, they concluded that the police lacked probable cause to search the trunk and they reversed the conviction.

In a dissent that was often impatient in tone, Judge Roberts disagreed that the search lacked probable cause. He criticized the majority’s rationale, stating that: “Sometimes a car being driven by an unlicensed driver, with no registration and stolen tags, really does belong to the driver's friend, and sometimes dogs do eat homework, but in neither case is it reasonable to insist on checking out the story before taking other appropriate action.”

He also wrote that “probable cause does not depend on eliminating other innocent (or, here, less incriminating) explanations for a suspicious set of facts.” He then concluded:

“[M]y colleagues' insistence that police should have further questioned Jackson amounts to prescribing preferred investigative procedures for law enforcement. We have neither the authority nor the expertise for such an enterprise. See United States v. Montoya de Hernandez, 473 U.S. 531, 542, 87 L. Ed. 2d 381, 105 S. Ct. 3304 (1985) (‘creative judges engaged in post hoc evaluations of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished’ (internal quotation marks omitted)). In the end, I would leave the judgment as to what lines of inquiry ought to be pursued to the officer himself, and judge probable cause on the facts as they are, rather than on what they might have been had the officer pursued a different course.”

From this opinion, it would appear that “Justice” Roberts starts with a predisposition that the police should be accorded significant deference under the Fourth Amendment when conducting searches.

News from the Web

• The Sentencing Project has recently published a comprehensive new study, written by Margaret Colgate Love, about the vast collection of federal and state laws that impose continuing, and sometimes onerous, burdens on convicts long after their court-imposed sentences have been fully discharged. The report, entitled "Relief From The Collateral Consequences Of A Criminal Conviction: A State-By-State Resource Guide," contains detailed profiles of the law and practice in 54 U.S. jurisdictions. While the full report will be available for purchase later this year from William S. Hein & Co., a copy of the Executive Summary is now available on the Sentencing Project’s Website, together with many of the tables that will be included in the full report.
  
  
• The Associated Press has reported that Alabama has passed a tough new sex crime bill that would require mandatory castration of persons convicted of violent sex crimes against children under 12. (See, “Bills toughening laws against sex offenders pass House and Senate,” by Bob Johnson, Associated Press, July 21, 2005). Almost immediately, some Alabama politicians, concluding that castration was not enough, began clamoring for the imposition of the death penalty in such cases. (See, “Siegelman calls for tougher sex offender penalties,” by Nadia Mohandessi, The Mobile Register, July 23, 2005).

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